Movant's application for late claim relief pursuant to Court of Claims Act
§ 10 (6) is denied. First, the movant did not submit a proposed claim with
his motion as required by statute. Secondly, although the application makes
reference to the exhaustion of his administrative remedies it provides no
information from which the nature of the underlying claim might be discerned.
The only substantive information provided by the movant is correspondence dated
April 6, 2004 and April 7, 2004 referencing the loss of a yellow envelope
containing legal material during movant's transfer from Great Meadow
Correctional Facility at Comstock, New York to Oneida Correctional Facility at
Rome, New York.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and, whether the claimant has any other available remedy".
The first issue for determination upon a late claim motion is whether the
application is timely. As far as the Court can decipher movant appears to be
asserting a cause of action sounding in ministerial neglect. As a result, the
three year Statute of Limitations set forth in CPLR § 214(4) applies
(Brown v State of New York, 250 AD2d 314, 318; Johnson v State of New
York, 131 Misc 2d 630) and the motion is timely.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
The excuses advanced for the failure to timely serve and file a claim are
movant's alleged difficulties in accessing legal materials and his numerous
transfers within the correctional system. In this regard it has been held that
conclusory allegations that one is incarcerated and unable to access legal
materials are inadequate to explain a failure to timely file an application for
late claim relief (Sandlin v State of New York, 294 AD2d 723; Thomas v
State of New York, 272 AD2d 650). The excuses proffered are insufficient
and this factor weighs against granting the motion.
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. Movant asserts that appropriate
officials were aware of the essential facts of his claim due to the filing of
grievances and letters. However, the application clearly states an accrual date
of December 3, 2003. Since the correspondence attached to the application are
dated April 6, 2004 and April 7, 2004 it does not appear that the State received
timely notice or was provided a meaningful opportunity to investigate the
matter. Under the present circumstances prejudice to the State is obvious.
These factors weigh against granting the motion.
The most important of the statutory factors is the potential merit of the
proposed claim (Savino v State of New York, 199 AD2d 254, supra).
As noted above the failure to assert any specific negligent acts or omissions on
the part of a State employee or agent deprives the Court of the opportunity to
appraise the potential merit of movant's claim. "A general allegation of
negligence on the part of the State is insufficient to establish a meritorious
cause of action" (Witko v State of New York, 212 AD2d 889, 891). This
important factor weighs against granting the motion.
As to the last factor the Court cannot determine on this motion record whether
or not movant has another available remedy.
Consideration of all of the above listed factors, particularly the lack of
potential merit, requires denial of movant's late claim application.